Free Speech and Foot Traffic

I will be brief for now, though I have much to say about Marvin Ammori’s wonderful article and discussion. Thank you for inviting me to join.

Two quick thoughts for today:

First, the more I embed myself in public forum doctrine (a dangerous side effect of involvement with Occupy Wall Street), the more Dr. Seuss-like it starts to seem, the rhyme in my head being: “walking means talking and free speech is on beeches.” The short of it being that the likelihood of a court finding a public forum seems highly correlated with whether or not it is (a) a beach or (b) a public thoroughfare with foot traffic. In other words, there is a high likelihood that it is a place that few people want to listen to rants, let alone plan the next financial transaction tax. Organizing in mid-summer on the Coney Island beach sounds wonderful, but a little distracting, and sidewalks, as places go, are not conducive to long, extended meetings. Everyone is too busy bustling past. Two quick examples: In HERE, the Second Circuit put great weight on the question of whether Lincoln Plaza formed “part of the City’s transportation grid.” In First Unitarian, the Tenth Circuit makes plain that “Expressive activities have historically been compatible with, if not virtually inherent in, spaces dedicated to general pedestrian passage.”

Why the emphasis on sidewalks and walking? Parks, under this analysis, are more public forum-prone if people walk through them. Several things could be happening here. It could be that justices are not particularly good organizers: these days, sidewalks aren’t great for organizing, let alone for communicating to vast swaths of people. Second, it could be that the ghost of the public easement treading through the cases. Public easement analysis and public forum analysis share many of the same elements, and it may be, for reasons more related to legal culture than logic, that persistent use under claim of right by the public (as against the government or a private party) is be the most powerful claim for public forum. And why are beaches given a pass? It’s not because they are great places for Tea Party rallies—I’d suggest it might be because there’s a public easement there. Maybe what is really happening is property law, not constitutional law—the scope of easement must necessarily include the right to speak, and on public lands the public qua people can gain an easement against the public qua government.

Second, it strikes me that left and right, scholars tend to try to squeeze so much of their political philosophy squeezed through the thin reed of the First Amendment. Perhaps this is inevitable, but it seems so small to bear so much.